Michael Conroy/AP Photo
Protesters gather across from the federal prison complex in Terre Haute, Indiana, August 28, 2020.
At the same time that he is seeking to overturn the voters’ (particularly Black voters’) state-by-state selection of America’s president, Donald Trump also knows he won’t succeed. The tell is that he’s scurrying to push through last-minute changes to whatever policies he has not yet debased. He has withdrawn the United States from treaties, put massive tracts of previously protected Alaska lands up for sale to oil companies, and considered starting a nice little war with Iran (only to be dissuaded by some pesky advisers). There would be no hurry if Trump were confident of serving for another four years.
The most Trumpian of these hurry-before-I’m-out-the-door outrages is his rush to execute more people convicted of federal capital crimes before wimpy Joe Biden takes office.
Until July, it had been 17 years since the federal government had executed a prisoner—a practice that George W. Bush effectively suspended after a couple of years in office, with Barack Obama continuing to adhere to the suspension throughout his two terms. Trump himself neglected to start up the feds’ execution mills until this summer, when his complaisant attorney general, Bill Barr, opted to go forward. (While a devout ultraorthodox Catholic, Barr apparently considers the Inquisition to be the moral apogee of ultraorthodox Catholicism.)
Since Election Day, Trump and Barr have upped the pace of the executions, lest Biden revert as he’s effectively promised to the Bush-Obama de facto suspension. Last week, with newly seated Justice Amy Coney Barrett joining the Supreme Court majority to let an execution proceed, Orlando Hall was put to death at the federal penitentiary in Terre Haute, Indiana. He was the sixth person executed since Trump and Barr renewed the practice this summer.
Still scheduled to come are two more executions. The first would put Lisa Montgomery to death; she would become the first woman the federal government has executed in nearly 70 years. The second would be of Brandon Bernard, who was convicted two decades ago for being one of five teenagers who killed two youth ministers at Fort Hood in Texas in 1999. Bernard, who is Black, was 18 at the time, and was not himself the shooter.
In his 20 years on death row, Bernard has not incurred a single disciplinary infraction. Rather, he has counseled at-risk youth not to follow his path, providing numerous written testimonies to faith-based organizations working with young people. Moreover, jurors at his trial were not allowed to hear testimony establishing that he had little say in the gang’s actions. The same jurors were also told at the sentencing hearing that Bernard would pose a grave threat to society if he was ever released—a prediction now widely viewed as “junk science,” even apart from the fact that he’s been more than a model prisoner. (A 13-year study of federal death penalty cases found that jurors returned death sentences in 82 percent of cases where they were told the defendants would constitute a future threat, and spared 82 percent of defendants they were told would not pose such threats.)
For these and other reasons, five of the nine jurors still living now believe Bernard’s death sentence should be commuted to a life sentence. Even the onetime federal prosecutor who argued before an appellate court to uphold Bernard’s death sentence now favors its commutation, particularly in light of the facts that Bernard was just 18 at the time and that he had no before-the-fact knowledge that the killings were going to take place.
But the weight of what we now know about Bernard’s youth, about the lack of reliability of “expert” witnesses’ projections of future behavior and the jury’s reliance on such projections nonetheless, of the two decades during which Bernard has demonstrated his rehabilitation—none of these will have any effect on Trump and Barr. It’s not clear they will have any effect on the Supreme Court’s right-wing majority. Bernard’s execution is still set for December 10.
In its cruelty, its bigotry, its contempt for mercy, justice, and facts, Trump’s conduct in hastening Bernard and his fellow convicts to the gallows merely tracks the president’s lifelong hatreds. He was one of many who called for the execution of the Central Park Five, the young Black men who were convicted of raping and assaulting a white woman jogging through the park. He was the only public figure, however, who still called for their execution after they were exonerated and another man confessed to the crime when DNA tests proved that he was the assailant.
Trump’s ideal of public leadership has long leaned toward leaders who proved their toughness by acts of brutality: leaders like Vladimir Putin, Recep Erdogan, and Kim Jong Un. Forced to relinquish power by some goddamn election, he can still make clear he’s one of the boys by putting more people to death before he’s forced to go.
